Dividing Humanity

Curtis Doebbler

In 1948, Jews claiming divine right to occupy the land of Palestinians created the State of Israel. This state was quickly recognised by the United Nations under pressure from the British, who sought to jettison their responsibilities in the region, and the Americans, eager to ease their conscience having ignored the slaughter of Jews and other minorities during World War II. Despite significant pressure and oppression, Palestinians have never given up their claim to recover the land they inhabited. To the chagrin of the State of Israel and its powerful allies, Palestinians have fought, both on the battlefield of their usurped land and in political forums everywhere, for their freedom. But despite numerous concessions to occupying Israelis, and repeated international interventions seeking a solution, the Israeli-Palestinian dispute remains one of the most protracted and deadly in the world.

Bereft of the support that a just world would have accorded, the Palestinian people have defied fate with their undying resolve for justice.

It is in this context that states that have sometimes supported, sometimes deserted, the Palestinians asked the International Court of Justice (ICJ) whether one of Israel’s latest means of oppression—the so-called separation wall—is in accordance with international law. It is not the first time such a step has been considered. In the late 1980s and early 1990s Palestinian activists several times pursued requesting an advisory opinion on the legality of settlements in the West Bank. Each time the request failed to gather sufficient support in the UN General Assembly.

The success of the resolution in the present instance could signal a popular groundswell of Palestinian opposition to their oppression, or the belief that an end might be in sight. For the international community at large the request of an advisory opinion from the world’s pre-eminent judicial body, consisting of the most respected international legal scholars, is increasingly seen as critical to the very future of the rule of law; perhaps even among the most difficult tests of legitimacy faced by international law since its evolution began.

The reason is that the advisory opinion is linked to the legitimacy of the institutions concerned, and the law upon which they are based. The request has been presented to the World Court by the United Nations’ most representative plenary organ, the General Assembly. It comes at a time when the most powerful country in the world—the United States—has repeatedly breached the most basic rules of international law with little consequence. Unlike previous breaches of international law, including those by Germany in the 1930s and 1940s, and by South Africa under apartheid, America’s views on international law are characterised by arrogant self-righteousness. Far from being a covert attack, the United States is engaged in a frontal attack on the institution of international law.

Sick with power and wealth, and their unquenchable desire for more, the Bush cabal would sweep away the laws of nature to obtain their goals.

Political scientist Michael Glennon, writing in the influential journal Foreign Affairs, characterised this attack by arguing that international law and international institutions are little more than hot air. He, together with policymakers like Richard Pearle and Paul Wolfowitz, concludes that international law is largely irrelevant. Instead, what is proposed is a world dominated by the United States. The blueprint of this world under US domination was proudly presented in the “20/20 Vision” strategy paper calling for America to control the world by force. No mention is made of international law in the almost two- dozen pages that chart America’s future in the world.

The current advisory opinion is a test of the new American dream of domination. It presents the court with the question Glennon thought had already been answered: Does international law matter in relation to the United States and the actions it supports? This has not gone unnoticed. Not only have Israel and America strenuously lobbied countries to support a call dismissing the request, Israel took the almost unprecedented step of protesting against one of the judges of the ICJ. Egyptian Judge Nabil El-Erabi’s right to sit on the case was disputed because he had previously represented his country’s opinion that Israel’s occupation of Palestine is illegal. Only South Africa had ever protested against a judge before. As it did in that case, the court overwhelmingly dismissed the objection, although American Judge Thomas Buergenthal dissented from this ruling.

Questioning actions supported by the US in the name of security—although addressed in the past—has not been popular among international bodies since 11 September 2001. One other of the few other international tribunals with jurisdiction over the US—The Inter-American Commission on Human Rights—has refused to question America’s efforts towards transnational domination. Despite first agreeing to precautionary measures against the US for its unlawful detention of prisoners of war in Guantanamo Bay, the Inter-American Commission has allowed this case to stall. It has also refused to hear cases on behalf of Afghans and Iraqis injured by US aggression. Several cases languish in limbo before this body not for articulated reasons of law, but seemingly for reason of political cowardice.

Should we be hopeful about the ICJ? Will the court’s opinion on the wall be so important?

The World Court does not issue binding opinions. Furthermore, the UN General Assembly has already determined that in its view the wall is illegal and clearly in violation of international law. To countries like Singapore, the General Assembly’s determination was enough. Nevertheless, the General Assembly, like the Security Council, is dominated by politics. The Court is supposed to be above political compromise and able to apply the law as it determines it, based on logical and articulated reasoning. Such an objective determination of the law is supposed to carry more weight. By virtue of article 38 of its statute, the court applies international law as found in agreements between states, and the custom of states as reflected by their practice and opinio juris (expression of legal intention and general principles of law as agreed upon by the nations of the world).

In a rare display of responsible behaviour, ninety states voted in favour of sending the matter of the wall to the ICJ (eight voted against).

In terms of procedure, the ICJ may use the writing of highly qualified jurists and judicial decisions by other bodies as subsidiary means of determining the law. The submissions of states as well as the Palestinian Authority, the Arab League and the Organisation of the Islamic Conference, which were made public with the opening of proceedings, were complimented this week in The Hague by two and a half days of legal arguments by top international lawyers. While the written pleadings of European states, the United States, Canada and Australia attempted to convince the court that it should exercise its discretion to leave the General Assembly’s request for an advisory opinion unanswered, the majority of oral pleadings unambiguously favoured the position taken by the Palestinians.

This position was succinctly set out by Ambassador Nasser Al-Kidwa who told the court that the “wall is not about security: it is about entrenching the occupation and the de facto annexation of large areas of Palestinian land”. And he warned, that the “wall, if completed, will leave the Palestinian people with only half of the West Bank within isolated, non-contiguous, walled enclaves. It will render the two-state solution to the Israeli- Palestinian conflict practically impossible.” His presentation was supplemented by four other legal counsels who laid out the arguments for the court’s responding to the request for an advisory opinion, the applicability of international law, how this law has been violated, and the consequences that the violations of the law by Israel would have for the solution of the armed conflict. In addition, Palestinians supplied the court with a 411-page brief, and more than a thousand pages of documentation and maps.

The oral statements by Algeria, Bangladesh, South Africa, Saudi Arabia, Sudan, Belize, Cuba, Indonesia, Jordan, Madagascar, Malaysia, Senegal, Sudan, the League of Arab States, and the Organisation of the Islamic Conference all supported the Palestinian position. More striking was the absence of any objections to these arguments. The Court was therefore implored for two and a half days without contradiction to find Israel responsible for the legal consequences of its violations of international law.

In brief, what are these violations?

Israel has ratified the International Covenant of Civil and Political Rights (ICCPR) and is bound by its provisions in all areas under its de facto control or jurisdiction, including the occupied territories. According to this treaty, Palestinians have a right to be treated humanely (article 4), to life (article 6), not to be arbitrarily detained (article 9), to have freedom of movement (article 12), to have freedom of expression (article 19), the right to family life (article 17), the right to peaceful assembly (article 21) and the right to due process when denied these rights (articles 2 and 14).

The arbitrary rounding up of every male in the neighbourhood is all part of a day’s work for Israel’s illegal warriors.

The wall violates all of these rights. The majority of parties making representations to the court pointed this out. The wall denies Palestinians the right to humane treatment by separating families and denying many Palestinians the right to work on the other side of the wall. By prohibiting Palestinians from freely travelling to Israel, and Israelis from travelling to the occupied territories on the other side of the wall, the wall interferes with freedom of movement, expression and assembly. And because it constitutes an arbitrary limitation on these rights without any due process or process of appeal, it violates the right to due process as well.

In addition to the ICCPR, Israel has also ratified the International Covenant of Economic, Social and Cultural Rights. This human rights treaty provides for the right to work (article 6), the right to an adequate standard of living, including adequate housing food and clothing (article 11), the right to healthcare (article 12), and the right to education (article 13). In addition to prohibiting Palestinians from getting to and from their places of employment (and in some cases from even having access to employment), the wall also severely limits Palestinians’ ability to attend universities, to get adequate healthcare, and to be able to purchase materials necessary for an adequate standard of living. While the Israeli government has often arbitrarily suspended these rights, the wall facilitates even more regular, and more severe, violations of these rights.

Lofty sounding international treaties mean nothing to those children who happen to live within firing range of the Zionist war machine.

Although these treaties allow states to derogate from some of their provisions in times of emergency—Israel claims it has been in state of emergency since 1948—Israel has not derogated from these treaties in the manner described in the treaties themselves. It did announce it was derogating from the prohibition on arbitrary detention in article 9 of the ICCPR, but did so in the form of an open-ended derogation that does not satisfy the terms of the treaty itself. As a result, the above obligations remain in force with the conclusion of the General Assembly in repeated resolutions, that these rights have been violated, inevitable. Even if Israel’s derogation from article 9 of the ICCPR were deemed valid, it has already been criticised as being too broad and too arbitrary by the UN treaty bodies authorised to evaluate derogations. Finally, prohibitions of inhumane treatment and the right to life cannot be derogated from under any circumstance.

If the court accepts that Israel is occupying Palestine, as almost all the parties before the court agreed, then international humanitarian law also applies. One of the most basic principles of humanitarian law is the prohibition of the acquisition of territory by force, which is a rule of customary international law. Thus, although it refuses to judge the legality of war, humanitarian law does limit the consequences. By building the wall, states repeatedly argued, Israel violated this most basic rule of humanitarian law.

International humanitarian law also prohibits onerous security measures against persons in occupied territories (article 27 of the Fourth Geneva Convention), the taking of their property (regulations 46 and 23g annexed to the Hague Convention of 1907 and article 55 of the Fourth Geneva Convention), their forcible transfer (article 49 of the Fourth Geneva Convention) and their collective punishment (regulation 50 annexed to the Hague Convention of 1907 and article 33 of the Fourth Geneva Convention). These same treaties require Israel to take positive action to safeguard the well being of people in territory it is occupying. Among the actions required are whatever actions are needed to ensure the general welfare of the civilian population in occupied territory (regulations 43 annexed to the Hague Convention of 1907), including ensuring adequate medical care (articles 16, 17, 20, 21, 22, 23, 55 and 56 of the Fourth Geneva Convention), ensuring adequate employment (articles 39 and 52 of the Fourth Geneva Convention), ensuring special care and education for children (article 50 of the Fourth Geneva Convention), ensuring adequate food supplies (article 55 of the Fourth Geneva Convention), and ensuring adequate humanitarian assistance (articles 59 through 62 of the Fourth Geneva Convention).

The emergency services can be the subject of their own emergency, if they anger the occupiers by crossing the wrong arbitrary line.

Again, although many of these provisions of law are already violated by Israel, the wall will exacerbate the violations causing them to be more systematic and more widespread. It will have this effect because it will form a substantial encroachment on the freedom of movement and gives Israel even more control over the lives of Palestinians. It will also create new barriers to the already beleaguered relief agencies that are struggling to provide life- sustaining assistance to the Palestinian people. The Geneva Convention relative to the Protection of Civilian Persons in Time of War dates from 1949, and is ratified by almost every country in the world, including Israel, the United States, and all Arab states. The Hague Regulations are annexed to the Convention Respecting the Laws and Customs of War on Land from 1907, and have gained such wide acceptance that they have been echoed in many modern instruments including the Statute of the International Criminal Court and the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Because of their wide acceptance, the Hague Regulations cited above can be said to have crystallised into rules of customary international law that are binding on Israel.

As the states appearing before the ICJ reiterated, there is an abundance of law available by which to judge Israel’s action. As this brief summary of the points made in oral statements and written pleadings indicates, Israel’s conduct violates multiple international legal obligations. But despite the relative clarity of the rules, and the unanimity of the states appearing in the oral proceedings before the court, as well as the importance of defending international law, it is not at all clear that the court will determine that it can respond to the request for an advisory opinion. And if it does respond, it is not clear that it can withstand the political pressures of the most powerful states—principally the United States—to apply the law as it has been interpreted by a majority of states in the international community.

Undoubtedly, to refuse an advisory opinion is the prerogative of the court, as is its right to interpret the law as it sees fit. But it is equally clear that if the court refuses to give an opinion, or gives an opinion that does not in large part apply the law as accepted by the overwhelming majority of states, then it will have lowered perhaps the last hurdle to America’s international dominance. In doing so, it will thrust the full responsibility of defending the dominated and oppressed from the governments of the world, and the inter-governmental international system they have established, squarely onto the shoulders of non-state actors. It will be left for individual activists, including guerrillas and freedom fighters, to resort to all necessary measures at their disposal to fight the self-proclaimed American project of world domination. If this is the result that occurs, those who have been entrusted with the important task of safeguarding, promoting and developing international law in our contemporary society may be remembered for allowing this law to become extinct. Perhaps this is exactly what Washington wants.